Hellyer Bros Ltd v Atkinson & Anor [1992] UKEAT 630_90_3103

EAT
Hellyer Bros Ltd v Atkinson & Anor
[1992] UKEAT 630_90_3103 · 1992-03-31
MR JUSTICE KNOX : Hellyer Brothers Ltd ("the Company") appeals from the decision of the Industrial Tribunal sitting at Hull on five days in September 1990 and sent to the parties on the 29 October 1990 whereby it was unanimously decided that one applicant before the Industrial Tribunal, Mr Dickinson, was dismissed by the Company for redundancy on 5 January 1984 and was entitled to a redundancy payment based on continuous service from 13 November 1977 and that the other applicant before the Industrial Tribunal, Mr Atkinson, was similarly dismissed for redundancy on 3 December 1983 and was entitled to a redundancy payment based on continuous service from 13 July 1950.Mr Dickinson and Mr Atkinson served as trawlermen on fishing vessels operated by the Company. As the dates of dismissal show, a very long time has elapsed between the time of events which lead to the termination of the employments of Mr Dickinson and Mr Atkinson and the hearing of this appeal. The earlier part of that period was taken up in proceedings which culminated in the decision of the Court of Appeal in HELLYER BROTHERS LTD v MCLEOD [1987] ICR 526 . They concerned three other trawlermen who lost their jobs in similar circumstances to those affecting Mr Dickinson and Mr Atkinson and it was hoped that those earlier proceedings would be determinative of the latter's claims. However that hope was not fulfilled because the Court of Appeal rejected the claims of the trawlermen involved in HELLYER BROTHERS LTD v MCLEOD , supra. Those claims were primarily based on an argument that there was a continuous contract of employment and not only a succession of short term contracts between the companies operating the trawlers and the trawlermen. The applications of Mr Dickinson and Mr Atkinson which had been stayed while HELLYER BROTHERS LTD v MCLEOD , supra, was pursued through this Tribunal and the Court of Appeal were restored and heard by an Industrial Tribunal in February and March 1988 which held that both Mr Dickinson and Mr Atkinson were entitled to redundancy payments but that decision was reversed by this Tribunal in February 1990 and the matter was remitted to the Industrial Tribunal for rehearing in accordance with the judgment of this Tribunal. It is from that re-hearing that these appeals are brought and all references in this judgment to the Industrial Tribunal and its decision are references to that re-hearing and the decision upon it.This is therefore the latest chapter in a very long history following upon the de-commissioning of the Company's and other companies' trawler fleets operating out of Hull at the end of 1983 or early 1984. Both Mr Dickinson and Mr Atkinson had served as members of crews of fishing vessels owned and operated by the Company or associated employers for many years and for no other employers. So when the Company withdrew its ships from fishing it is easy to understand that there was an expectation that the usual consequences of a redundancy situation would ensue. As Slade L.J. put it in the Court of Appeal in HELLYER BROTHERS LTD v MCLEOD , supra, at 531 concerning the unsuccessful applicants in those cases
"We should say at once that in human terms each of them in our opinion deserves considerable sympathy."
Both Mr Dickinson and Mr Atkinson served under a series of crew agreements in a form which followed the requirements of the Merchant Shipping Act, 1970, ("the 1970 Act") and regulations made under it viz the Merchant Shipping (Crew Agreements, Lists of Crews and Discharge of Seamen) (Fishing Vessels) Regulations, 1972, ("the Regulations"). The statutory background was stated by Slade L.J. in HELLYER BROTHERS LTD v MCLEOD , supra, at page 531 et seq as follows:"With an immaterial exception, section 1(1) of the Merchant Shipping Act 1970 requires that a written agreement shall be made between each person employed as a seaman in a ship registered in the United Kingdom and his employers and shall be signed both by him and by or on behalf of them. Section 1(3) provides that the provisions and form of a crew agreement must be of a kind approved by the Department of Trade and Industry, and that different provisions and forms may be so approved for different circumstances. The department has duly approved a standard form ("the standard crew agreement"), which bears the heading "Crew agreement and list of crew of a fishing vessel." Immediately below this heading there follows a statement that the form and provisions have been so approved under section 1(3) and:
"if the form and provisions of this agreement are amended or clauses added without the prior approval of the department it will not be regarded as approved under the said section of the Act."
Thus, the form must be rigidly followed, no more and no less.The front page of the standard crew agreement contains the following headings, with spaces for insertion of the appropriate details:
"Name of fishing vessel;" "
Port of registry;" "Official number;" "Name and address of registered owner;" "Registered length;" "Date and place of commencement of agreement and list of crew" (with a space also for the signature of the master); "Date and place of termination of agreement and list of crew" (again with a space also for the signature of the master).On the second page of the standard crew agreement, under the heading "Contractual clauses," there are set out the following standard clauses:

"(i) This agreement is made between (name and address of employer)

. ........................................ ......................................and each of the seamen whose names are set out in the list of crew incorporated in this agreement.(ii) It is agreed: that the employer will employ each seaman and the seaman will serve in the capacity and at the rate of wages expressed against his name in the list of crew incorporated in this agreement; the vessel shall be employed fishing within the limits of .... for a period which shall not end later than .... or until the vessel first calls thereafter at its port of destination in the United Kingdom provided that if the agreement has not terminated within 30 days after the period of six months, the first call at port thereafter.(iii) After one voyage has been completed by a seaman under this agreement either the seaman or the employer may give to the other notice (in writing or orally before a witness) to terminate the seaman's employment under this agreement, such notice to take effect at a port in the United Kingdom and to be given not less than .... hours (here insert time) either before the vessel is due to arrive at that port, or before it is due to sail, if the employment is to terminate at the port where the vessel is when the notice is given.(iv) (1) The parts of the local port industrial agreement dated .... and made between .... and .... specified in paragraph 2 of this clause shall have effect in relation to each seaman who is of a description to which such agreement relates as if those parts were incorporated herein and shall have effect as they are set out in the local port industrial agreement at the time the seaman becomes employed hereunder, together with any amendments which are effective at that date, and together also, from the dates on which they become effective during the seaman's employment hereunder.(2) The parts of the local port industrial agreement referred to in paragraph 1 of this clause are those relating to pay (including poundage), hours of work, leave, discipline and time of payment or settlement of wages(v) In relation to an individual seaman this agreement may be terminated:(a) by mutual consent;(b) by appropriate notice in accordance with the terms of this agreement;(c) by loss or total unseaworthiness of the vessel."The Industrial Tribunal made detailed findings about successive crew agreements to which Mr Dickinson and Mr Atkinson were parties over a considerable number of years but in order to resolve the relatively narrow points which arise on these appeals it is only necessary to have regard to the last of each of those series of crew agreements. The crew agreement signed by Mr Dickinson related to the M.T. Roman and the relevant entries required to be made by Reg 13 of the Regulations regarding Mr Dickinson were that his capacity was 2nd Officer , the date of commencement of employment on board was 13.9.83 and the date and place of leaving the vessel was stated to be "Hull 13.12.83". As appears below the Industrial Tribunal by a majority found that to be incorrect. The reason for discharge was stated to be "M.C.DIS" which it is common ground stands for "mutual consent discharge" . Here too the Industrial Tribunal made findings to which reference will be made below. The insertions in the contractual clauses for the fishing limits and maximum period of the agreement under clause (ii) were "Trawling in the North Sea and elsewhere" and "11.3.84" . The period of hours in respect of notice to terminate employment under clause (iii) was filled in as 24 hours . The relevant entries regarding Mr Atkinson's last crew agreement concerned the M.T. Goth and recorded that he was employed as spare hand. The date of commencement of employment was stated as 17.9.83 and the date and place of leaving the vessel was stated to be "Hull 13-12-83" . The reason for discharge was "M.C. DIS" and the insertions in the blanks in the contractual clauses were the same as those quoted above concerning Mr Dickinson except that the maximum period for the agreement was "14.3.84" rather than "11.3.84" . Both Mr Dickinson and Mr Atkinson signed in the appropriate spaces for signature of seaman on engagement and on discharge and as required by Reg 24 (1) of the Regulations there was also the signature in each case of the person before whom they were being discharged, being a person authorised on that behalf by the employer. The facts regarding Mr Dickinson's discharge were found by the Industrial Tribunal as follows. Some of these findings were majority findings, others were unanimous and the minority views are omitted. The Roman was doing mackerelling trips out of Milford Haven and unloading catches at various ports other than Hull until she returned to Milford Haven on about 2 December 1983 with a catch to be unloaded onto a reefer, a cargo vessel. The reefer was not there and the crew were allowed to go back to Hull leaving their sea gear on board and expecting to go to sea again before Christmas. Mr Dickinson did not sign off the crew agreement before Christmas. The date for discharge, the 13 December 1983, was put in the crew agreement by the ship's runner, the owner's agent. This was usually the date when shore pay ran out. Shore pay was paid in accordance with the terms of pay agreed in the Local Port Industrial Agreement. Under this the men were paid at a certain rate for a number of days that varied according to the number of days spent at sea. Mr Dickinson did not know on this or any other occasion when he signed off the crew agreement what was the date of discharge that was inserted into the crew agreement. Usually the men did not sign off after the date in the crew agreement. On this occasion Mr Dickinson did so on the date, probably the 5 January 1984, when he was rung up on the telephone by Mr Keevil who told him that the Company had finished trawling and were decommissioning their fleet of trawlers and told him to go and pick up his "tickets" i.e. his documents of qualifications. The same day and as a result of that telephone call Mr Dickinson went down to the ship's runner's office where there was a large number of people signing off a large number of crew agreements and Mr Dickinson then signed off the crew agreement.The facts regarding the termination of Mr Atkinson were unanimously found by the Industrial Tribunal to be in the ordinary course of his signing off crew agreements. Their findings regarding this were as follows. Mr Atkinson throughout his career regularly signed on and off crew agreements. The crew agreements generally lasted for at least several voyages. He would always sign off a crew agreement perfectly willingly when asked to do so by those in authority. There were gaps between crew agreements on occasions and they fell into 3 categories. 1. periods when the ship he had been sailing in went out of service2. periods when he asked to miss the next voyage 3. periods after he had been "sacked". This was a reference to the assessment by the master or mate at the end of a voyage which covered conduct and ability. The highest grade for conduct was very good represented by the initials "V.G." . The highest grade for ability was excellent , followed by satisfactory , shortened to "Sat" and moderate shortened to "Mod" . History does not relate what the fourth category of ability was. An assessment of "V.G. Sat" involved the man in question having the right to a berth in the same vessel when and if she next sailed. The assessment "V.G. Mod" meant that he went back into the pool of fishermen available for berths. It was called "getting the sack" by everyone concerned. Notwithstanding those findings regarding the meaning and effect of "V.G.Sat." the Industrial Tribunal found there were no mutual obligations between crew agreements as between the Company and the members of the crews. It is for this reason that the only contracts of employment relied upon are those in the individual crew agreements. The Industrial Tribunal unanimously found that a contract of employment was created by the man signing the crew agreement and it terminated when he signed off the crew agreement. There was no appeal or cross appeal regarding that conclusion.Returning to the facts found regarding Mr Atkinson's termination of employment they were that for a period before his last voyage he sailed on the Goth and the gaps between crew agreements were periods when the Goth was waiting to go to sea. His last voyage finished on 24 November 1983. He signed off the crew agreement probably on or about the 3 December 1983 expecting to sail on her next voyage. He signed off as required by the Company because they were saying that the Goth was not going to sail within a few days. On the 23 December 1983 he was told that the Company was decommissioning their ships and he applied for a redundancy payment.Both Mr Dickinson and Mr Atkinson claimed redundancy payments under s.81(1) of the Employment Protection (Consolidation) Act, 1978, ("the 1978 Act"). That provides so far as material:
"where an employee who has been employed for the requisite period (a) is dismissed by his employer by reason of redundancy .... then, subject to the following provisions of this Act, the employer shall be liable to pay to him a sum (in this Act referred to as a "redundancy payment")...."
The only issue on the appeal is whether or not Mr Dickinson and Mr Atkinson were dismissed by the Company. There is no issue regarding redundancy being the reason if they were so dismissed, nor is there any issue about the requisite period of employment, a matter upon which the Tribunal made findings from which there is no appeal. What is in issue is whether or not there was in either case a dismissal by the employer Company. That turns on s.83(2) of the 1978 Act which reads:
"(2)An employee shall be treated as dismissed by his employer if, but only if - (a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice or (b) where under that contract he is employed for a fixed term that term expires without being renewed under the same contract (c) the employee terminates that contract with or without notice, in circumstances ... such that he is entitled to terminate it without notice by reason of the employer's conduct."
No reliance was placed on behalf of Mr Dickinson and Mr Atkinson upon either para b) or c) and so the only question is whether the Company terminated the crew agreement in either or both cases.The Industrial Tribunal made its critical findings about the termination of crew agreements on either side. It found that the crew member terminated the agreement if he signed off because he did not want to sail on the next voyage of that ship. It also found that there were occasions when there was a termination by mutual consent, one being where the man agreed to go on the voyage of a different ship because a new mate was coming in and another where the parties agreed to terminate a particular crew agreement because its time was expiring and to start a new one. But the other occasions on which a man signed off the crew agreement were found not to be true discharges by mutual consent. In particular the Industrial Tribunal found that if the Company requested a crewman to sign off the crew agreement because the ship was not going back to sea within a short period, the Company was terminating the crew agreement. They went on to say this in para 70 of their decision:
"If the man signed off the crew agreement because he had been assessed "V.G.Mod" it was because the respondents were saying he could not go on the next voyage of that ship and they were terminating the agreement. It is true that there is no evidence of either party insisting on a witness in accordance with the express terms for notice. However the evidence is that the exchange of information in question took place usually in the ship's runner's office. The lack of proof of an insistence on a witness does not in our view affect the essential nature of the termination."
The Industrial Tribunal also dealt with the argument advanced on behalf of the Company there and before us that the terminations were in each case by mutual consent.
"We accept .... that the words "M.C.DIS" put in the crew agreement as the reason for the discharge were a formula used in all situations apart from injury and a man failing to report on his ship during the currency of the crew agreement for him. Indeed the respondents do not suggest that it had any other meaning but they do submit that there was a true mutual consent to discharge at least where the man and the respondents were agreeing that there was a reason to sign off the crew agreement. We do not accept that argument. We think that we have to look at the reason for the termination in each case and to decide what the underlying reason was. We accept that the man in each case signed off willingly in the sense that he agreed to sign off. We do not accept that that was a mutual consent to terminate."
Mr Pardoe for the Company challenged the validity of the Industrial Tribunal's reasoning on two grounds in relation to Mr Atkinson and on one of those grounds in relation to Mr Dickinson. The ground which only applied to Mr Atkinson is that on the facts found by the Industrial Tribunal there was no action taken by the Company which had a causative effect in relation to the termination of Mr Atkinson's employment which occurred when he signed off in the usual way some days before he knew anything about the decommissioning and at a time when the common expectation was that his vessel, the Goth, would sail again, although not for a few days. All that was done on the employer's behalf was that a request was made for him to sign off which he did willingly. There was no element of coercion or threat in that request. Accordingly it is argued, it is not possible in law on those facts to find that the Company terminated the crew agreement. Mr Pardoe accepted that this submission was not open to him in relation to Mr Dickinson because the Industrial Tribunal found as a fact that Mr Dickinson's signing off of his crew agreement was as a result of the telephone call from Mr Keevil telling him of the decommissioning and instructing him to go and pick up his "tickets".The submission that was common to the termination of the employment of both Mr Dickinson and Mr Atkinson was that the contract in the crew agreement only provided for termination in two potentially relevant ways, since one can disregard the loss or total unseaworthiness of the vessel, that is to say, by mutual consent or by appropriate notice in accordance with clause (iii) of the contractual clauses. The latter required notice to be given not less than 24 hours before the ship was due to sail and no notice was given by or on behalf of the Company. Therefore, the argument goes, the crew agreement was terminated by mutual consent. This argument is buttressed by the further submission that the crew agreement has statutory force in that there is a statutory prohibition against its variation in section 1(3) of the 1970 Act which requires the provisions and form of a crew agreement to be of a kind approved by the Department of Trade and Industry and as Slade L.J. said in the passage quoted above from HELLYER BROTHERS LTD v MCLEOD , supra, at p.531

"the form must be rigidly followed, no more and no less."

The statutory prohibition against variation extended, Mr Pardoe submitted, to prevent waiver of the benefit of any of its terms.Reliance was placed by Mr Pardoe on BIRCH v LIVERPOOL UNIVERSITY [1985] ICR 470 not only for the proposition, which was not disputed, that s.83(2)(a) of the 1978 Act is directed to the case where, on a proper analysis, the contract of employment is terminated by the employer alone and is not apt to cover the case where, on such analysis, the contract of employment has been terminated by the employee or by the mutual, freely given consents of the employer and the employee. See per Slade L.J. at p.483. He also relied upon it as showing that in the absence of a threat or anticipation of dismissal an action by an employee which brings about a termination of the employment cannot legitimately be treated as a termination by the employer. Here the act that brought the contract of employment to an end was the seaman's act in signing off which in Mr Atkinson's case was done quite willingly and not under threat.In BIRCH v LIVERPOOL UNIVERSITY , supra, the University employer had invited employees including Mr Birch to participate in what was called a Premature Retirement Compensation Scheme. It was a term of the scheme that a University committee should have the right to determine whether any proposed retirement was in the managerial interest of the University. It was only if an application was thus approved that an employee was to be asked to confirm his acceptance of the offer of early retirement. Mr Birch applied for early retirement, his application was approved and he was requested to make a formal application to retire on 31 July 1982 which he did. The University replied by a letter confirming that it was in its managerial interest for him to retire under the scheme and requesting him to do so on 31 July 1987. The Industrial Tribunal upheld his claim to a redundancy payment on the ground that it was by that last letter that the University terminated Mr Bird's employment. The Employment Appeal Tribunal reversed that decision and that was unanimously upheld by the Court of Appeal. Nolan J. in the judgment of this Tribunal in a passage which Ackner L.J. at p.481 wholeheartedly endorsed, said this in dealing with BURTON, ALLTON & JOHNSON LTD v PECK [1975] ICR 193 a case where an employee agreed to his redundancy but was held nevertheless to have been dismissed by his employer.
"The passages in the judgement of the judge which we have quoted are designed to make it clear that the fact that an employee has no objections to being dismissed, or even volunteers to be dismissed, does not prevent his dismissal when it occurs, from being a dismissal within the meaning of the Act. We do not read his judgement as encroaching in any way upon the distinction which exists in law between a contract which is terminated unilaterally (albeit without objection, and perhaps even with encouragement from the other party) and a contract which is terminated by mutual agreement. The phrase "consensual dismissal" which the Industrial Tribunal used seems to us, with respect, to blur this critical distinction. In every case it will be necessary to determine what it is that has had the effect, as a matter of law, of terminating the particular contract, and on the undisputed facts of the present case it seems to us for the reasons already given that the termination was effected by mutual agreement and not by dismissal."
There was no issue as to the facts in BIRCH v LIVERPOOL UNIVERSITY and the termination was effected by successive letters of offer and acceptance, the classic mode of creating or rescinding a contract. The question whether or not the employer alone had terminated the contract was both a question of law and one which could only be answered in the negative because the exchange of offer and acceptance of early retirement was essentially consensual. There was no rejection of earlier authorities such as MARTIN v GLYNWED DISTRIBUTION LTD [1983] ICR 511 where Sir John Donaldson M.R. said at 519"Whatever the respective actions of the employer and the employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same "Who really terminated the contract of employment?" If the answer is the employer, there was a dismissal within paragraph (a) of s.55 of the Act of 1978. If the answer is the employee, a further question may then arise, namely "Did he do so in circumstances such that he was entitled to do so without notice by reason of the employer's conduct?".Slade L.J. at p.483 said that the authorities required one to look at the realities of the facts, rather than the form of the relevant transactions in deciding whether the contract had been "terminated by the employer" within the meaning of the subsection. And he agreed with Ackner L.J. who said at p.480 that Sir John Donaldson in the passage quoted above from MARTIN v GLYNWED DISTRIBUTION , supra, was not there deciding that a situation where the contract was determined by mutual consent could not exist. This seems to have been the false assumption at the basis of the Industrial Tribunal's decision in BIRCH v LIVERPOOL UNIVERSITY , namely that their task was to identify which of the two parties terminated the contract rather than also considering whether it was jointly terminated. Neither the fact that the last effective letter was written by the University nor the fact that the original initiatives in the matter came from it is significant if the transaction effecting the termination was in substance consensual.MARTIN v GLYNWED DISTRIBUTION , supra, was a case where the essential issue was whether an employee who resigned had done so as a result of pressure brought upon him by the employer. The employee had driven the employer's minibus into three cars and was told there would be an inquiry which would probably result in his dismissal and that it would be in his best interests to resign which he did. He claimed to have been unfairly dismissed and to have been given no option but to resign but the Industrial Tribunal held that he had voluntarily terminated his employment. The Employment Appeal Tribunal by a majority reversed that decision but the minority view was upheld in the Court of Appeal which restored the Industrial Tribunal's decision holding that the case depended upon the determination of the relevant facts and that this Tribunal had no jurisdiction to interfere. Ackner L.J. in BIRCH v LIVERPOOL UNIVERSITY at p.47 said of MARTIN v GLYNWED DISTRIBUTION :"The case raised essentially questions of fact and degree. Was there any pressure placed upon the employee to resign? And if so, was the degree of pressure such as to amount in reality to a dismissal?".In Mr Birch's case Ackner L.J. said there was no suggestion of any pressurisation and there were no additional facts to the facts that could be gleaned from the documents.Mr Pardoe relied strongly on the finding that Mr Atkinson signed off the crew agreement willingly in the sense that he agreed to sign off as indicating that there was no pressurisation and that it followed from that that Mr Atkinson's act in signing off was voluntary and since it was the act which terminated the contract of employment it was not legally possible to say that the Company alone terminated it. It matters not for that argument whether the termination was joint or by Mr Atkinson alone, although the submission was that it was by mutual consent.In our view Mr Atkinson's case is not one where all the facts are there to be gleaned from the documents. We consider that the analysis of what Mr Atkinson was doing in signing off when requested to do so was an issue of fact for the Industrial Tribunal. Similarly we consider that the analysis of the effect of the request for him to sign off was an issue of fact for it. There was in our view material upon which it was open for the Industrial Tribunal to find that what Mr Atkinson was agreeing to do was not the termination of the contract of employment but the filling in of the appropriate form given that the Company had said through its agent that the Goth was not going back to sea within a short period. The major distinction between BIRCH v LIVERPOOL UNIVERSITY , supra, and Mr Atkinson's case is that in the former there could be no doubt but that the written exchanges between the University and Mr Birch took the form of offers and acceptances. Each of the University's letters asked a question. Their meaning was in any event a pure question of construction and therefore of law. In Mr Atkinson's case on the other hand the request to sign off was oral and had to be seen in its context and its meaning was a question of fact. There was, to put it no higher, material upon which the Industrial Tribunal could legitimately find that the Company was not asking a question but announcing an accomplished fact so that compliance became not an acceptance of an offer but acceptance of the accomplished fact.We do not accept that there is a rule of law that duress or pressurisation is the only feature which can prevent an employee's voluntary act in compliance with an employer's request, where the act is the physical event which marks the termination of the contract of employment, from amounting to an agreement to the termination of the contract of employment. None of the statements in BIRCH v LIVERPOOL UNIVERSITY , supra, regarding the earlier decisions, such as MARTIN v GLYNWED DISTRIBUTION LTD , was directed at this particular issue.We do not consider that the decisions such as SHEFFIELD v OXFORD CONTROLS LTD [1979] ICR 396 are any obstacle to such a conclusion. Arnold J there said at p.402
"It is plain we think, that there must exist a principle, exemplified by the four cases to which we have referred, that where an employee resigns and that resignation is determined upon by him because he prefers to resign rather than to be dismissed (the alternative having been expressed to him by the employer in the terms of the threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be any other than a dismissal. The cases do not in terms go further than that. We find the principle to be one of causation. In cases such as that which we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation later (this should read "letter") or to be willing to give, and to give, the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases."
The issue in that category of cases which is reviewed by Arnold J. is how far a resignation is voluntary. The issue in Mr Atkinson's case is different and is was there a resignation or an agreement to a joint termination of employment by Mr Atkinson when he signed off. The causation test has little, if any, relevance to such an issue.For these reasons we reject the submission that the Company could not be found in law to have terminated Mr Atkinson's contract of employment.The other argument advanced by Mr Pardoe applies to both Mr Dickinson and Mr Atkinson and has already been stated. It is based upon the proposition that the crew agreements have statutory force and can only be terminated in one or other of the ways enumerated in clause (v) of the contractual clauses. Since no notice was admittedly given, it is argued that the only available mode of termination was mutual consent, which is fatal to both claims to redundancy payments.The provisions for notice in clause (iii) of the contractual clauses permit either a written notice (and none is relied upon) or an oral notice before a witness. So far as time is concerned, when the notice is to take effect at a port in the United Kingdom, all that is required, if the employment is to terminate at the port where the vessel is when the notice is given, is that the notice should be given not less than 24 hours before the vessel is due to sail. In the circumstances of these appeals where no-one suggests that either vessel was due to sail within 24 hours of the signing off by the seaman concerned immediate notice could be given. The Industrial Tribunal decided that the Company terminated the crew agreement by requesting the men to sign off the crew agreement because the ship was not going back to sea within a short time and went on:
"It is true that there is no evidence of either party insisting on a witness in accordance with the express term of notice. ...The lack of proof of an insistence on a witness does not in our view affect the essential nature of the termination."
In our view that is an implicit finding that the requirement of a witness was waived rather than that there was a termination of the agreement by a fundamental breach on the part of the Company. There is no finding to the latter effect by the Industrial Tribunal nor did either Mr Dickinson or Mr Atkinson rely on a constructive dismissal under s.83(2) of the 1978 Act. The question then arises whether the statutory requirement in s.1(3) of the 1970 Act prevents a waiver as Mr Pardoe submitted. He argued, with a not entirely disinterested solicitude for the protection of the Company's employees, that the scheme of the 1970 Act was intended to prevent a seaman's contract of employment being terminated in any manner other than that permitted under the approved form of contract, and referred to Chitty on Contracts 26th Edition paras 1597 and 1600 which point the contrast between the rescission by mutual agreement of a contract which, now that the rules of equity prevail, can be effected orally even where the contract itself is required to be in writing, on the one hand, and the variation of a contract which, if the contract is required by law to be in writing, can only be effected in writing. GOSS v LORD NUGENT (1983) 5 B & Ad.58. Similarly he argued a waiver has to be in writing if the contract is required by law to be in writing. Chitty on Contracts at para 1606 deals with the form of waiver and in our view does not support the proposition that there can be no oral waiver of a term of a contract which the law requires to be in writing. The first sentence in the paragraph says the opposite:
"A waiver may be oral or written or inferred from conduct even though the provision waived is found in a contract required to be evidenced by writing."
Mr Pardoe's argument based on the compulsory nature of a crew agreement in our view goes further than the object of the statute requires. Granted that the effect of s1(3) of the Act of 1970 is to prohibit the making of a crew agreement otherwise than in accordance with the form approved by the Department of Trade and Industry it does not in our view necessarily follow from that that it is not open to a party not to insist on compliance with all the provisions of a contract in that form. The requirement of notice to terminate under the contractual clauses is in fact very much shorter than under the general provisions of s.49 of the Act of 1978 which are excluded by s.144(1) of the same Act and we are unable to discern a Parliamentary intention that a seaman should be debarred from waiving a provision for his benefit.We have therefore reached the conclusion that the analysis by the Industrial Tribunal although somewhat elliptical as regards the operation of the doctrine of waiver can be supported. We should add that although we were referred to para. 24 of the Employment Appeal Tribunal decision in WOOD v CUNARD LINE [1989] IRLR 431 where Wood J. said:
"It seems to us clear that it is wrong to argue solely on the basis of the written crew agreement. The Tribunal found that there were variations from the written form and that the written form did not sufficiently or accurately set out the terms of the contract of employment."
we do not treat that as authority for the proposition that a crew agreement subject to the Act and the Regulations can be varied informally as the parties please. That would seem to be in conflict with what Slade L.J. said in HELLYER BROTHERS LTD v MCLEOD , supra, which was not cited to the Employment Appeal Tribunal.Equally, we are unable to accept the submission made to us by Mr Forrest on behalf of Mr Dickinson that the notice provisions in the Contractual Clauses are not themselves the subject of Board of Trade or its successor the Department of Trade and Industry's approval. That submission seems to us also to be in conflict with Slade L.J.'s statement in HELLYER BROTHERS LTD v MCLEOD , supra, that the form itself must be rigidly followed, no more and no less.Finally, we record that Mr Pardoe ingeniously sought to avoid the apparent difficulty caused by Mr Keevil's telephone call to Mr Dickinson on 5 January 1989 being remarkably unlike an offer to terminate his employment rather than a statement that it was over by submitting that it was an ineffective attempt to vary the contract of employment which should as a matter of law be construed as an offering to terminate by mutual consent. He relied on LATCHFORD PREMIER CINEMA LTD v ENNION [1931] 2 Ch.409 where Bennett J. held that directors who orally tendered their resignations at an annual general meeting of the company which were accepted by the meeting did indeed have their directorships thereby terminated although the articles of association required a resignation to be in writing. There was no such artificiality in that case in regarding the directors as offering to resign as there is in the present case in treating Mr Keevil as offering to agree on behalf of the Company to the termination of Mr Dickinson's contract of employment. What Mr Keevil did was to say the Company was decommissioning as an established fact. He was not offering anything and the Industrial members of this Tribunal in particular are not surprised to find that the Industrial Tribunal held that the Company terminated Mr Dickinson's contract of employment.Both appeals will be dismissed.